What is the Difference Between a Legal Separation and a Divorce?

Posted On April 27, 2021 Divorce,Family Law

Legal separation is a legal process allowing a couple to live apart while remaining married, while divorce is the legal process of terminating a marriage. There are similarities and differences between the two, as well as advantages and disadvantages to consider when contemplating one or the other.

Differences

The primary difference between legal separation and divorce is that in a legal separation, you are still married. Other differences to be aware of include: 

• Marital Status: in a legal separation, you are not allowed to remarry, and after a divorce, you are free to remarry.
• Remarriage/Reconciliation: with a legal separation, the decision can be reversed, vs. a divorce where the decision is final. If you reconcile following a legal separation, you only need to ask the court to terminate the arrangement. If you get back together after a divorce, you would have to remarry. 
• Health Care/Other Benefits: a spouse may retain certain benefits held during the marriage, such as health insurance, certain social security benefits, and others. If your spouse’s health insurance plan covers you, for instance, your legal separation agreement may stipulate those benefits remain in effect, assuming the insurance carrier permits it. In contrast, a divorce would terminate those benefits. 
• Property Rights: each spouse still has rights to marital property if the other dies when legally separated. A divorce eliminates those rights. 
• Debts/Liabilities: after legal separation, spouses may still be responsible for the other’s debts. For instance, you will be responsible for debts on accounts that also have your name or, if you reconcile, any debts incurred by your spouse during the separation. Unlike a divorce, where all debts are divided and awarded to one party or the other and sometimes done by the court. 
• Decision-Making: in a legal separation, your decision-making responsibilities do not end. Spouses can still make financial or medical decisions for the other as they are still considered next of kin. This does not apply to divorced spouses who are no longer considered next of kin.

Similarities

It is just as important to understand the similarities between legal separation and divorce as it is to know the differences. Those include: 

• Division of Property – couples will divide property based on their living situation. 
• Separation Maintenance – These kinds of support payments are the equivalent of alimony in a divorce.
• Child Visitation – With separated or divorced parents living in different locations, a visitation schedule will need to be worked out. 
• Child Support – If there are children, child support payments will be determined based on the child’s needs.

Types of Separation

Couples who aren’t ready for divorce have the option to separate. There are typically three different types of separation:

Trial Separation 

A couple lives apart temporarily to decide whether they want to stay married. The couple is still legally married, so this trial period has no real legal effect on the assets and debts accumulated while apart. Everything is considered marital property. However, you and your spouse have the option of drawing up an agreement to govern the rules of the separation, even though it will not be court-ordered. 

Permanent Separation

A couple decides to split up and does not intend to reconcile. Nothing is filed with the court, but the couple has an agreed-upon date of separation. Not all states recognize permanent separation, including Washington state. If you are in a state that recognizes this type of separation, all property and debts accumulated after the date of permanent separation are viewed as separate property. Debts, on the other hand, that happen after separation and before divorce can be joint debts if they go toward basic necessities such as childcare.

Legal Separation

Separation through a court order that is legally binding. A legal separation is similar to divorce in that you and your spouse are required to negotiate property division, custody, visitation, child support, and spousal support. The significant difference is that you are still married and unable to remarry without a divorce. 

Get Help from a Spokane Family Attorney

A legal separation or a divorce can be a viable solution for you and your spouse. Contact Twyford Law Office to discuss your options with a Spokane Family Law & Divorce Lawyer in a free consultation today.